Legislative Updates

By: Paul Grossman, JD

In June 2013, the U.S. Department of Education Office for Civil Rights (OCR) issued a Dear Colleague letter along with a “Know Your Rights” supplement concerning pregnant and parenting students under Title IX of the Education Amendments Act of 1972 (available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201306-title-ix.html). This letter called on campuses to provide accommodations to students who were pregnant or have recently given birth, even though the students are not individuals with disabilities. “Any special services provided to students who have temporary medical conditions must also be provided to pregnant students.” On many campuses, this started closer communication between individuals responsible for the implementation of Title IX and those individuals responsible for the implementation disability anti-discrimination laws (Section 504, ADA Titles II, ADA Title III). Indeed, on some campuses, lead responsibility for application the 2013 guidance was assigned to a Disabled Student Services Director. While there is speculation as to continuing viability of the DCL guidance, the opinion of a Federal District Court in Shank v. Carleton, 232 F. Supp. 3d 1100 (D. Minn. 2017) suggests that we all may be overlooking an equally or more urgent cross-cutting issue, one not dependent on any dear colleague letter.

Shank v. Carleton

Over the course of her education, Ms. Shank was twice the victim of rape; on both occasions while she was under-aged and intoxicated. Under Title IX, Ms. Shank sued Carleton College, seeking to hold it responsible for being “deliberately indifferent” to wide-spread under-aged drinking, in effect, knowing of this wide-spread practice, condoning it or doing nothing to prevent it, including the foreseeable consequence of an increased risk of sexual assault. The federal district court, seeing this as too much of a causal stretch, granted Carleton’s motion to dismiss this claim, “tolerating students’ misuse of alcohol—even with knowledge that such misuse increases the risk of harmful behaviors such as sexual assault—is simply not the same thing as actual knowledge of sexual assault.”

HOWEVER, the court refused to grant Carleton’s motion to dismiss with regard to the adequacy of its response to notice by Ms. Shank that she had been raped, with regard to claims under:

various state law-based actions;

Title IX; and,

Section 504 as well as Title III of the ADA for an alleged failure to accommodate the Post Traumatic Stress (PTS/PTSD) caused by the two rapes.

As presented in record, so far, the court had good reason not to grant Carlton’s motion to dismiss; noting that Ms. Shank had alleged that: as a condition to learning the disposition of her claims against one of the alleged perpetrators (Student One), Carleton had required her to engage in a highly problematic one-on-one meeting with the student, failed to suspend or expel Student One or Student Two; failed to appeal the very minimal sanctions assigned to Student One by an University administrative hearing body; failed to provide a promised no-contact order to Student One until months after it was issued; refused to give Ms. Shank the written outcome of the adjudication hearing against Student One; failed to take action in response to Student One’s violation of the no-contact order; and allowed the campus to be a “zone of danger” for Ms. Shank.

Clearly, all the surviving claims are appropriate for resolution under Title IX. But what about Section 504 and the ADA? The court stated:

Shank alleges that Carleton breached its duty to accommodate her disability by refusing to suspend or expel either Student One or Student Two; failing to remove notations from her academic record that she had dropped several classes; and failing to offer other academic accommodations, such as permitting her to attend classes remotely or allowing her to take only those classes held in sections of the campus where Student One was unlikely to appear. [citations omitted]

Carleton argues that Shank’s ADA and § 504 claims fail because she never requested these accommodations. See Mershon v. St. Louis Univ., 442 F.3d 1069, 1077 (8th Cir. 2006) (plaintiff bears the burden of demonstrating that she requested reasonable accommodations). Shank alleges, however, that she asked that the “dropped” notations be removed from her academic record. She also alleges that Carleton assured her that her written statement regarding the first rape would be sufficient to support the suspension or expulsion of Student One, which raises a reasonable inference that she requested that Student One be suspended or expelled. And Shank alleges that Carleton failed to provide her with reasonable academic accommodations “despite her requests.” Compl. ¶ 234(b) (alleging that Carleton failed to offer academic accommodations “despite her repeated requests”). These allegations are slender, but they are (barely) sufficient to survive a Rule 12(b)(6) motion. The Court therefore denies Carleton’s motion to dismiss Shank’s ADA and § 504 claims.

Analysis and Practical Implications

Given the great likelihood that any student who is the victim of sexual assault will, for a considerable period of time, experience PTS, this case raises a whole new set of considerations with regard to such a student as an “individual with a disability.”

Initially, Carleton’s defense that the student never asked for an accommodation looks like a compelling argument. On further consideration, it may not be. First, the record is not clear, at this point, exactly with whom Ms. Shank communicated or what she requested. A more fully developed record is necessary to resolve this question.

Second, there is a trend in the law, most notably exemplified by Grabin v. Marymount Manhattan College, 2014 U.S. Dist. LEXIS 79014, 2014 WL 2592416 (S.D.N.Y. June 10, 2014) to recognize the concept of “constructive notice,” where a student makes a request for academic assistance to address a health-related problem. Even though the student never uses the words “disability” or “accommodation,” some courts may consider this action enough to entitle the student to be directed by faculty or administrators to the DSS office for an interactive conversation about disability and accommodation. Where faculty and administrators fail to provide this direction, the student’s duty to formally request an accommodation may be waived by the court.

Converting or supplementing a Title IX claim with a 504/ADA claim is certainly a creative legal tactic. In response, courts will need to be careful to distinguish what is legitimately a disability issue and what is not. A claim of disability discrimination must not be permitted to subvert the legitimate due process expectations of the alleged perpetrator. The summary expulsion of a perpetrator is not a reasonable accommodation. However, a request to: take courses on line; to remove from a transcript certain negative annotations; to grant scheduling priority to avoid conflicts; to carry a reduced course load; or, for the alleged victim to be reassigned to other classrooms or dorms — may all fall within the duty to accommodate a student with a disability, particularly recently acquired PTS. So too, is refraining from placing the student in a traumatic face to face meeting with the alleged perpetrator!

Shank should be lesson to us all, that a report of sexual violence implicates more than just Title IX. Logically, it is likely to also raise questions to be considered under Section 504 and the ADA. The leadership of the DSS Office and the Title IX Office need to be talking! At a minimum, the campus team that responds to sexual assault should have some disability training and be able to explain to the victim what additional forms of support may be available through the DSS Office. If the student consents, the better approach may be to include a member of the DSS Office on the response team. Both offices need collaborate in order to come up with an effective set of supports for any victim of sexual assault.

The bottom line is that both Title IX and Disability Service offices should be in a position to support and coordinate with each other to provide any student who has been sexually assaulted with the most effective possible campus-wide response.